Kimbrough v. Kimbrough
| Docket Number: | 2009-CA-01019-COA Linked Case(s): 2009-CA-01019-COA ; 2009-CT-01019-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-03-2011 Opinion Author: Griffis, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Divorce: Irreconcilable differences - Recusal of judge - M.R.A.P. 28(a)(6) - Division of marital property - Child custody Judge(s) Concurring: Lee, C.J., Irving, P.J., Barnes, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Myers, J. Concurs in Result Only: Carlton, J. Procedural History: Bench Trial Nature of the Case: CIVIL - DOMESTIC RELATIONS |
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| Trial Court: |
Date of Trial Judgment: 05-01-2009 Appealed from: Lee County Chancery Court Judge: John A. Hatcher Disposition: Granted Divorce, Divided Marital Property, and Awarded Physical Custody of Daughter to Husband Case Number: 7-1034-41-H |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Bobbie Sue Kimbrough |
JOHN A. FERRELL |
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| Appellee: | Robert Earl Kimbrough | JAK MCGEE SMITH |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Divorce: Irreconcilable differences - Recusal of judge - M.R.A.P. 28(a)(6) - Division of marital property - Child custody |
| Summary of the Facts: | Robert Earl Kimbrough and Bobbie Sue Kimbrough agreed to a divorce based on irreconcilable differences. They submitted to the chancellor the issues of property division and custody of their five-year-old daughter. The chancellor divided the marital property and awarded sole physical custody of the daughter to Robert, with joint legal custody and visitation awarded to Bobbie Sue. Bobbie Sue appeals, and Robert cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Recusal This case was first assigned to a chancellor who heard one day of testimony and then recused himself. The case was then reassigned to another chancellor who heard five days of testimony before he entered the judgment. The parties did not ask for or obtain a transcript of the hearing before the first chancellor. Bobbie Sue now argues that it was reversible error for the second chancellor to render judgment without considering the testimony elicited before the first chancellor. However, she cites no legal authority which bars the issue from review under M.R.A.P. 28(a)(6). In addition, the record indicates that no substantial evidence was revealed in the hearing before the first chancellor that was not also revealed before the second chancellor. Issue 2: Division of marital property Bobbie Sue argues that the chancellor erred when he awarded her only $4,400 as her equitable interest in the marital home. Robert received $161,600 of the home’s equity, while Bobbie Sue received only $4,400, which is a mere 2.6% of the equity. The chancellor determined that, although the property was to be considered a marital asset, Robert had owned the house and the adjacent business, free of any liens, for many years prior to the marriage, while the marriage only lasted five years until the separation. Clearly, this was the reason the chancellor awarded Robert the majority of the home’s equity. The division of one asset is not reviewed in isolation. While Bobbie Sue received a small share of the equity in the home, she received a sizeable share of the personal property. Looking at the assets as a whole, Robert received $201,220.50, while Bobbie Sue received $63,020.50, not including her 401(k). While Bobbie Sue was awarded only 24% of the marital property, this division was within the wide discretion that chancellors have in making these difficult decisions. Bobbie Sue also argues that the chancellor erred when he classified Robert’s business, the Motorcycle Doctor, as Robert’s separate property. Appreciation of a separate business interest, which occurs during the marriage and is attributable to the efforts of either spouse, is marital property. The burden of proof is on the non-owning spouse to show both the appreciation in value of the separate business interest and that such appreciation was attributable to the efforts of either spouse. Robert owned the Motorcycle Doctor for approximately eighteen years prior to the marriage. Clearly, the Motorcycle Doctor was his separate property. Any appreciation in value of the business during the marriage attributable to Robert’s or Bobbie Sue’s efforts could be marital property. However, Bobbie Sue did not offer any evidence of such appreciation. Robert argues that the chancellor erred when he classified the GMC Sierra pickup truck, the Chevrolet motorcoach, and the Suzuki four-wheeler as marital property. Robert argues that he acquired these items prior to the marriage; therefore, they are his separate property. It appears these items should have been classified as Robert’s separate property. Personal property acquired prior to the marriage is the separate property of the owning spouse, unless it has been so extensively used for family purposes that it loses its identity as separate property and becomes marital property. Bobbie Sue testified that Robert acquired the items before the marriage, and there was no evidence that they had been extensively used by the family. However, where the overall division is fair, an error in classification does not warrant reversal. Robert received 97.4% of the equity in the marital home and 76% of all the marital property. Certainly, from Robert’s perspective, the overall division was fair. Robert argues the chancellor erred when he awarded Bobbie Sue all of the equity in the Yukon, the pontoon boat, the camper, and Bobbie Sue’s 401(k). When the division of all the assets is examined, it is clear that there is no merit to Robert’s contention that he did not receive an equitable share. He received 76% of the marital property, and he received 97.4% of the marital home’s equity. Furthermore, it is clear that the chancellor awarded Robert a large share of the marital home, and to compensate, he awarded Bobbie Sue a large share of the personal property. This is a permissible way to make an equitable division of the marital property. Issue 3: Child custody Bobbie Sue argues the chancellor erred when he awarded sole physical custody of the couple’s daughter to Robert. The polestar consideration in child custody cases is the best interest and welfare of the child. According to Albright, the chancellor must consider certain factors in determining the child's best interest. The chancellor was not manifestly wrong when he decided that a five-year-old girl was not of tender years. The bulk of the testimony at trial indicated that Robert was the more attentive parent. The chancellor believed both parties when they said they had ceased drinking and using drugs since the separation, and he did not assign much weight to this evidence. The chancellor cited the fact that Bobbie Sue had to work five days a week and a few Saturdays a year from 8:30 a.m. to 5:00 p.m. at Mac’s Tires, while Robert’s self-employment allowed him greater flexibility and more time with the couple’s daughter. The chancellor also cited Bobbie Sue’s adultery as evidence that Robert had greater willingness and capacity to provide primary childcare. At the time of the divorce, Bobbie Sue was taking prescription medications for anxiety and depression. There was no evidence that Bobbie Sue exercised poor judgment in her use of the medications. Rather, it appears that she was taking the medications as prescribed, and there was nothing to suggest that they impaired her ability to care for her daughter. The chancellor considered Bobbie Sue’s adulterous relationships as just one factor among others. There was substantial evidence to support the finding that Robert’s home environment was more stable. Thus, the record indicates that there was substantial evidence to support the chancellor’s determination of the Albright factors. |
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